1.These
appeals by way of special leave arise out of the following facts.

2.On
28th December 1986, the prosecutrix PW9 along with her mother, Dukhni Bai PW8
were on their way to the bazaar for purchasing households items. While on the
way, they met four of the accused Pyaru, Nandoo, Rajoo and Pentoo, who
addressed the prosecutrix as a prostitute and then asked her to go with them to
a hotel some distance away. The prosecutrix, however, refused to accept this
order on which 2 Nandoo and Pyaru put a towel on her face and after slapping
her several times, made her sit on a scooter with Nandoo in front and Pyaru at
the rear and the prosecuritx in the middle.

The two accused then
took the prosecutrix near the newly constructed quarters where the other accused
were already present. It is the case of the prosecution that all the accused,
first Nandoo, and thereafter the others turn by turn committed rape on her, and
after having satisfied their lust, she was dropped by some of them near the
peepal tree in the bazaar. She then reported the matter to the police at about
10 p.m. the same evening in which she named Nandoo and Bindu as the two accused
who had taken her on the Luna but also stated that as all the other accused
were from Ruabandha, she would be able to recognize them. A case under sections
366 and 376 of the IPC was accordingly registered by Sub-Inspector P.N. Shukla
PW10. The Police Officer also seized a saree and a petticoat which the
prosecutrix had been wearing at the time of the commission of rape and also
produced her before PW1 Dr. Smt. Christian for her medical examination. The
Doctor observed no marks of 3 injury visible on any part of her body other
than a swelling on the lower jaw but opined that as she was habituated to
sexual intercourse, she (the Doctor) was unable to give any opinion about the
intercourse having been committed recently, though a foul smell was emanating
from the vagina and slides were taken therefrom. Some of the accused were
arrested on 29th December 1986 whereas the others were arrested on 2nd January
1987 and the underwear they were allegedly wearing at the time of incident were
seized and thereafter sent to the laboratory and were subsequently found to be
stained with semen. The accused were also produced before PW2 Dr. S.S. Dhillon
and PW3 Dr. P. Srivastava, who opined that all the accused were capable of
performing sexual intercourse. On 13th December 1986, 9 of the 13 accused were
intermingled with 27 other persons and were subjected to an identification
parade under the supervision of Sakharam Mahilong, Naib Tehsildar (PW5). As per
the evidence of this officer, all the accused were duly identified by the
prosecutrix by putting her hand over the head of each accused.

3.On
the completion of the investigation, all 13 accused were charged for offences
punishable under Sections 366/376 of the IPC and as they pleaded not guilty,
they were brought to trial. The trial court in its judgment dated May 26, 1989
relying on the evidence of the prosecutrix, as corroborated by the statement of
her mother PW8, and further relying on the fact that 9 of the accused had been
identified in the test identification parade and that the medical evidence
showed the presence of semen in her vagina, found the case against all the
accused as partly proved, and while acquitting them of the offence under
section 366 of the IPC convicted them for the offence under section 376 (2)(g)
with a sentence of RI for 10 years and a fine of Rs.200/- and in default of
fine to undergo RI for 6 months. Several appeals were thereafter filed by the
accused in the High Court which observed that two of the accused appellants
i.e. Ramaiya and Krishna had not been identified in the identification parade
and were, thus, liable to acquittal. The other appeals were, however, dismissed
with the modification in the sentence from 10 years to 8 years RI with an
increase in the fine of Rs.200/- to 5 Rs.5000/- to be made payable within 6
months failing which they would undergo RI for 10 years. The present appeals
have been filed by 10 of the accused as Raju son of Billya chose not to file an
appeal. It is in these circumstances that the matter is before us for final
hearing.

4.Mr.
Ranjit Kumar, the learned senior counsel for the accused-appellants has raised
several arguments during the course of hearing. He has first emphasized that as
the story projected by the prosecution witnesses i.e. the prosecutrix PW9 and
her mother PW8 in so far as the offence under section 366 of the IPC was
concerned, had been disbelieved, the conviction under section 376(2)(g) of the
IPC on the same evidence was uncalled for. He has also pointed out that as
there was no injury on the person of the prosecutrix, despite her claim of
having been raped by 13 young men, falsified the entire story and the fact that
she was apparently a girl of easy virtue was an additional reason as to why her
evidence should be examined with care. He has, however, especially emphasized
that as a large number of persons had been involved, their identification
beyond doubt was a sine qua non 6 for conviction and as both the prosecutrix
and her mother had at one stage stated that they knew the accused and 9 of them
had been identified by the former in an identification parade in a procedure
which was, to say the least, open to grave suspicion, the evidence of
identification too was unacceptable.

5.The
learned State counsel has, however, submitted that the prosecutrix and her
mother had no reason to falsely implicate the accused and in the light of the
fact that they were illiterate and belonged to a backward area, some indulgence
was to be shown to them with respect to the minor inconsistencies in their
statements inter-se. He has also pointed out that the accused had been
identified in the light of an electric pole at the place of incident and as
Nandoo, Bindoo and Pyaru who had first accosted the prosecutrix were known to
her, their involvement was in any case virtually proved. He has finally urged
that the chemical examiner's report had revealed the presence of semen stains
on the underwear which the accused had been wearing, showed that rape had
indeed been committed.

6.We
have heard the learned counsel for the parties and gone, through the record. It
is true that rape is one of the most heinous and reprehensible of crimes that can
be committed on a woman and it is for this reason that courts have leaned
heavily in favour of such a victim. [See: State of Punjab vs. Gurmit Singh
& Ors. (1996) 2 SCC 384]. In this matter this Court allowed the State
appeal against acquittal and while convicting the accused under section 376 of
the IPC, observed thus:

"Of late, crime
against women in general and rape in particular is on the increase. It is an
irony that while we are celebrating women's rights in all spheres, we show
little or no concern for her honour. It is a sad reflection on the attitude of
indifference of the society towards the violation of human dignity of the
victims of sex crimes. We must remember that a rapist not only violates the
victim's privacy and personal integrity, but inevitably causes serious
psychological as well as physical harm in the process. Rape is not merely a
physical assault - it is often destructive of the whole personality of the
victim. A murderer destroys the physical body of his victim, a rapist degrades the
very soul of the helpless female. The Courts, therefore, shoulder a great
responsibility while trying an accused on charges of 8 rape. They must deal
with such cases with utmost sensitivity. The Courts should examine the broader
probabilities of a case and not get swayed by minor contradictions or
insignificant discrepancies in the statement of the prosecutrix, which are not
of a fatal nature, to throw out an otherwise reliable prosecution case. If
evidence of the prosecutrix inspires confidence, it must be relied upon without
seeking corroboration of her statement in material particulars. If for some
reason the Court finds it difficult to place implicit reliance on her
testimony, it may look for evidence which may lend assurance to her testimony,
short of corroboration required in the case of an accomplice. The testimony of
the prosecutrix must be appreciated in the background of the entire case and
the trial court must be alive to its responsibility and be sensitive while
dealing with cases involving sexual molestations.

7.The
Court also observed that the alarming frequency of crimes against women had led
Parliament to make some special laws in the background that rape was a very
serious offence and that this was another factor which was to be kept in mind
while appreciating the evidence in such matters.

8.The
observations in Gurmit Singh's case were reiterated in Ranjit Hazarika vs.
State of Assam (1998) 8 SCC 635 in the following terms:

"The courts
must, while evaluating evidence, remain alive to the fact that in a case of
rape, no self-respecting woman would come forward in a court just to make a
humiliating statement against her honour such as is involved in the commission
of rape on her. In cases involving sexual molestation, supposed considerations
which have no material effect on the veracity of the prosecution case or even
discrepancies in the statement of the prosecutrix should not, unless the
discrepancies are such which are of fatal nature, be allowed to throw out an
otherwise reliable prosecution case. The inherent bashfulness of the females
and the tendency to conceal outrage of sexual aggression are factors which the
courts should not overlook.

The testimony of the
victim in such cases is vital and unless there are compelling reasons which necessitate
looking for corroboration of her statement, the courts should find no
difficulty to act on the testimony of a victim of sexual assault alone to
convict an accused where her testimony inspires confidence and is found to be
reliable. Seeking corroboration of her statement before relying upon the same,
as a rule, in such cases amounts to adding insult to injury.

Why should the
evidence of a girl or a woman who complains of rape or sexual 10 molestation
be viewed with doubt, disbelief or suspicion? The court while appreciating the
evidence of a prosecutrix may look for some assurance of her statement to
satisfy its judicial conscience, since she is a witness who is interested in
the outcome of the charge leveled by her, but there is no requirement of law to
insist upon corroboration of her statement to base conviction of an accused.
The evidence of a victim of sexual assault stands almost on a par with the
evidence of an injured witness and to an extent is even more reliable. Just as
a witness who has sustained some injury in the occurrence, which is not found
to be self-inflicted, is considered to be a good witness in the sense that he
is least likely to shield the real culprit, the evidence of a victim of a
sexual offence is entitled to great weight, absence of corroboration
notwithstanding. Corroborative evidence is not an imperative component of
judicial credence in every case of rape.

Corroboration as a
condition for judicial reliance on the testimony of the prosecutrix is not a
requirement of law but a guidance of prudence under given circumstances. It
must not be overlooked that a woman or a girl subjected to sexual assault is
not an accomplice to the crime but is a victim of another person's lust and it
is improper and undesirable to test her evidence with a certain amount of
suspicion, treating her as if she were an accomplice. Inferences have to be
drawn from a given set of facts and circumstances with realistic diversity 11
and not dead uniformity lest that type of rigidity in the shape of rule of law
is introduced through a new form of testimonial tyranny making justice a
casualty. Courts cannot cling to a fossil formula and insist upon corroboration
even if, taken as a whole, the case spoken of by the victim of sex crime
strikes the judicial mind as probable."

9.The
aforesaid judgments lay down the basic principle that ordinarily the evidence
of a prosecutrix should not be suspect and should be believed, the more so as
her statement has to be evaluated at par with that of an injured witness and if
the evidence is reliable, no corroboration is necessary.

Undoubtedly, the
aforesaid observations must carry the greatest weight and we respectfully agree
with them, but at the same time they cannot be universally and mechanically
applied to the facts of every case of sexual assault which comes before the
Court. It cannot be lost sight of that rape causes the greatest distress and
humiliation to the victim but at the same time a false allegation of rape can
cause equal distress, humiliation and damage to the accused as well. The
accused must also be protected against the possibility of false 12
implication, particularly where a large number of accused are involved. It
must, further, be borne in mind that the broad principle is that an injured
witness was present at the time when the incident happened and that ordinarily
such a witness would not tell a lie as to the actual assailants, but there is
no presumption or any basis for assuming that the statement of such a witness
is always correct or without any embellishment or exaggeration. Reference has
been made in Gurmit Singh's case to the amendments in 1983 to Sections 375 and
376 of the India Penal Code making the penal provisions relating to rape more
stringent, and also to Section 114A of the Evidence Act with respect to a
presumption to be raised with regard to allegations of consensual sex in a case
of alleged rape. It is however significant that Sections 113A and 113B too were
inserted in the Evidence Act by the same amendment by which certain presumptions
in cases of abetment of suicide and dowry death have been raised against the
accused. These two Sections, thus, raise a clear presumption in favour of the
prosecution but no similar presumption with respect to rape is visualized as
the 13 presumption under Section 114A is extremely restricted in its
applicability. This clearly shows that in so far as allegations of rape are
concerned, the evidence of a prosecutrix must be examined as that of an injured
witness whose presence at the spot is probable but it can never be presumed
that her statement should, without exception, be taken as the gospel truth.
Additionally her statement can, at best, be adjudged on the principle that
ordinarily no injured witness would tell a lie or implicate a person falsely.
We believe that it is under these principles that this case, and others such as
this one, need to be examined.

10.Undoubtedly,
the charge under section 366 of the IPC has not been made out as per the
findings of the courts below.

We, however, find
that the evidence of rape is distinct from the other charge and the matter
should be examined in that background. We are, accordingly, of the opinion that
merely because the accused have been acquitted for the offence punishable under
Section 366 of the IPC is ipso-facto no reason to disbelieve the entire
prosecution story on this solitary ground.

11.The
veracity of the story projected by the prosecution qua allegations of rape
must, thus, be examined. It has come in the evidence of PW8 that the
prosecutrix had been married while a child but her gauna had not been performed
as her husband, had, in the meanwhile, taken a second wife. The Doctor PW1 Dr.
Smt. Christian has, however, opined that the prosecutrix was so habituated to
sexual intercourse that it was not possible to ascertain as to when she had
last been subjected to it. It has also come in the evidence of PW8 that the
police had often questioned the prosecutrix as to why she was indulging in
prostitution. The prosecutrix herself also admitted that she had once been
arrested in the Ajanta Hotel case but had been bailed out by Shri Bansal,
Advocate. It is indeed surprising that though, as per her allegations, all 13
accused had assaulted her one after the other, but the doctor did not find even
a scratch on her person. The trial court and the High Court have not accepted
the plea raised by the accused as to the adverse character of the prosecutrix
as the evidence on this score was not conclusive. We are of the opinion,
however, that in the light of the facts mentioned 15 above, it is probable
that the prosecutrix was indeed involved in some kind of improper activity.

12.The
other evidence in the matter would have to be examined in this background.
Primary emphasis has been placed by Mr. Ranjit Kumar on the identification of
the accused. It has been submitted that the identification itself was faulty
whereas the State Counsel has argued to the contrary and submitted that as the
accused were known to the prosecutrix she had been in a position to identify
them.

The question of
identification is, to our mind, the determining factor in this case. In the FIR
the prosecutrix has named four of the accused as having committed rape on her,
they being Nandoo, Bindu, Pintoo and Raju. PW8, who was unsure, as to the identity
of the accused, however, stated that she knew Nandoo, Pyaru, Pawan, Pintoo and
Raju but conceded that she had not known any of the accused at the time of the
incident but after the police had enquired about the names of the boys in her
presence, she had come to know who they were. It is also significant that the
Court had recorded a note that even after she had named the five accused she
had been 16 able to identify only Pawan and she had not been able to identify
any of the other accused. She also stated that some of the boys had been
arrested on the day of the incident and that she had been called to visit the
police station several times to identify them and that the police had often
threatened her and her daughter that if they did not come to the police station
they would file a case against them. In the last paragraph of her
examination-in-chief PW8 clearly stated that she was not in a position to
identify the boys at the time of incident or even in Court. It is significant
that the prosecutrix, her mother and all the accused were residents of
Ruabandha and as per the prosecutrix's evidence she was aware of the identity
of only a few of them whom she had named in the FIR. It is also significant
that in her examination-in-chief the prosecutrix stated that at the time when
she had been taken away on the Luna she did not know the names of the accused
who were taking her away and that she was not personally acquainted with any of
the boys at the time of incident and did not know their names and was not in 17
a position to recognize them. In paragraph 46 of the evidence, this is what she
had to say:

"Police
personnel had taken me to Police Station at about 2.30 O'clock in the night.
Immediately after lodging the report there, they came at the place of occurrence
taking me there and had got identified the accused persons having taken them
out of their houses. Then the police personnel had taken the accused persons
also at the Police Station. In that night nine boys had been brought having
arrested. Remaining five boys had been brought by the police on the second day.
I had identified those also in the Police Station.

After arrest of
nine-ten boys, they had taken near the house where incident had taken place and
they had asked to identify the remaining boys. Then I had identified 4-5 boys
from that crowd. I had gone to the Police Station having sit in Daga with all
those boys. Witness now states that 2-3 boys had been arrested from the houses,
remaining 6-7 boys had been arrested from Dance site, remaining 4-5 boys had
been brought having arrested on the second day.

I had not gone to the
houses of the boys for identification. Police personals had called them in the
hotel and I used to identify them there."

We are of the
opinion that in the light of the categorical statements of the two main
prosecution witnesses, the identification of the accused is extremely doubtful.

13.The
test identification parade conducted by PW5 Sakharam Mahilong, Naib Tehsildar
is equally farcical. This witness stated that 36 persons in all, including 9 of
the accused, had been associated with the parade held by him on 30th December
1986 but he also admitted that the 9 accused had been covered with black and
brown coloured blankets. To our mind the only inference that can be drawn from this
admission is that similar and distinctive blankets had been provided so as to
facilitate the identification of the accused.

Moreover, in the
light of the fact that the witness had been shown to the prosecutrix not once
but several times while they were in police custody, the identification parade
held by PW5 is even otherwise meaningless.

14.The
learned State counsel has, however, placed special emphasis on the fact that
the underwear handed over by the accused to the investigating officer were
found by the chemical examiner to be stained with semen which corroborated the
19 prosecution story. In the light of the fact that we have found the
identification of the accused to be doubtful, the recovery of the underwear
becomes meaningless. But we have nevertheless chosen to examine this submission
as well. In this connection, we have gone through the evidence of Durga Prasad
Shukla PW10, the investigating officer. We notice that the underwear of some of
the accused had been produced by them on 29th December 1986 whereas the
remaining accused had likewise produced their underwear on the 2nd of January
1987. We find it some what difficult to believe that the accused had themselves
provided the evidence of having committed rape soon after the incident, and
even more surprising, that some of them had done so three days after the
incident. The recovery of the stained underwear is a factor which, by itself,
cannot support a case of rape against the accused.

15.On
an examination of the entire evidence, we are of the opinion that it would be
difficult to conclusively show the involvement of each of the accused beyond
reasonable doubt.

To our mind the truth
and falsehood are so inextricably 20 intertwined, that it is impossible to
discern where one ends and the other begins.

16.As
already noted above Raju, son of M. Billya did not file an appeal in this
court. In the light of the fact that we have found the prosecution story to be
doubtful, Raju too must be given the benefit of doubt in the light of the SCC
568, Arokia Thomas vs. State of T.N. (2006) 10 SCC 542 and Suresh Chaudhary
etc. vs. State of Bihar (2003) 4 SCC 128. We, accordingly allow the appeals and
acquit the present appellants, as also Raju son of M. Billya.